TaxTMI 
TaxTMI 
2020 (2) TMI 1736
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.... circumstances of the case; (iii) Award the cost of the writ petition to the petitioner." Learned counsel for the petitioner submits that the petitioner is a private limited company under the Companies Act, 1956 and petitioner is dealing in RealEstate, which provides facility of constructed Flats to public at large and has been developing Group Housing Project under the name and style of "MGI Maple" in Govindpuram, Gautam Budh Nagar. The company obtained 'No Objection Certificate' from the concerned authorities including the Development Autuority of Gautam Budh Nagar. Learned counsel for the petitioner further submits that the respondent no.5 purchased a Flat in the petitioner's project but due to unavoidable circumstances, the petitioner could not deliver the possession of the Flat. However, without waiting for sometime, the respondent no.5 filed a complaint before the Real Estate Regulatory Authority, Gautam Budh Nagar, which was registered as Complaint No. 1120172878 by which respondent No. 5 demanded his amount with 24% annual interest on the ground that project of the petitioner is now cancelled. The U.P. Real Estate Regulatory Authority, G....
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....egal, arbitrary and not sustainable in the eyes of law. Shri Wasim Masood Khan, learned counsel for the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar, Respondent No. 2 countered all the arguments raised by the learned counsel for the petitioner and submitted that the orders passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar dated 13.06.2018 and 29.06.2018 are rightly passed by the single member and there is no illegality in passing the said orders and the orders are not without jurisdiction in view of the provisions contained under Section 81 of the Real Estate (Regulation and Development) Act, 2016, wherein it speaks about the 'delegation', which says that "The Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under section 85), as it may deem necessary." Shri Wasim Masood Khan, learned counsel further submits that in view of Section 81 of the Act, the U.P. Real Estate Regulatory Authority in its 5th meeti....
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....lottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed. (2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force. (3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the all....
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.... (a) has an appreciable prevention, restriction or distortion of competition in connection with the development of a real estate project; or (b) has effect of market power of monopoly situation being abused for affecting interest of allottees adversely, then the Authority, may suo motu, make reference in respect of such issue to the Competition Commission of India" "Section 40. Recovery of interest or penalty or compensation and enforcement of order, etc.- (1) If a promoter or an allottee or a real estate agent, as the case may be, fails to pay any interest or penalty or compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate Authority, as the case may be, under this Act or the rules and regulations made thereunder, it shall be recoverable from such promoter or allottee or real estate agent, in such manner as may be prescribed as an arrears of land revenue. (2) If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as the case may be, issues any order or directs any person to do any act, or refrain from doing any act, which it is empowered to do under this Act or the rules or....
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.... special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under section 85), as it may deem necessary." From the arguments raised by the learned counsel for the petitioner and admission made in the paragraph No. 35 of the writ petition, it is not disputed that the respondent No. 5 has booked his Flat on 28.12.2012 in the petitioner project, apart from petitioner 280 other persons also booked the Flats and it is also not disputed that from that date till filing of the present writ petition, the petitioner has not delivered the possession of the Flat to respondent No. 5 and due to arbitrary and illegal action of the petitioner, respondent No. 5 filed the complaint before the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar as per the provision of the Act, 2016 regarding his grievances and after considering the grounds raised in the complaint, the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar passed the impugned orders dated 13.6.2018 and 29.6.2018 dir....
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.... deem necessary" and having regard to the provision of Section 81 of the Real Estate (Regulation and Development) Act, 2016, the authority vide their 5th meeting dated 5.12.2018 as per Agenda 1 delegated the power to a single member to decide the cases in both the Benches sitting at Lucknow and Gautam Budh Nagar, the delegation of power of the 5th meeting dated 5.12.2018 of U.P. Real Estate Regulatory Authority is quoted as under: "उ०प्र० भू- सम्पदा विनियाम प्राधिकरण की पंचम बैठक दिनांक 05.12.18 का कार्यवृत्त दिनांक 05.12.2018 को प्राधिकरण कि बैठक निम्नलिखित एजेण्डा बिन्....
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....66; प्रस्ताव। 5.03 उ०प्र भू० सम्पदा (विनियामक एवं विकास) नियमावल - 2016 के नियम- 2(1)(h) तथा नियम-15 में संशोधन का प्रस्ताव। 5.04 उ०प्र भू० सम्पदा (विनियामक एवं विकास) नियमावली - 2016 के नियम-15 में संशोधन करने का प्रस्ताव। 5.05 अन्य कोई बिन....
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....#2352;ाधिकरण में एड्जुडिकेटिंग आफिसर्स के पैनल में शासन को 3 अतिरिक्त उपयुक्त न्यायिक अदिकारियों के नाम भेजने हेतु चयन का प्रस्ताव।" निर्णय प्राधिकरण द्वारा सम्यक विचारोपारान्त निम्नलिखित 3 अतिरिक्त न्....
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....06;शोधन करने का प्रस्ताव। निर्णय प्राधिकरण द्वारा प्रस्ताव अनुमोदित किया गया। बैठक सधन्यावाद समाप्त हुई। ह० अपठनीय (राजीव कुमार) अध्यक्ष, उ०प्र० भू-सम्पदा विनियामक प्राधिकरण। उ०प्र० भू- सम्पदा विनì....
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....6;दा विनियामक प्राधिकरण।" Therefore, in view of the provision contained under Section 81 of the Real Estate (Regulation and Development) Act, 2016 and as per decision taken by the U.P. Real Estate Regulatory Authority in Agenda No. 1 of meeting dated 05.12.2018 the impugned orders dated 13.6.2018 and 29.06.2018 passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar has been rightly passed by the single member and the arguments raised by learned counsel for the petitioner that the impugned order was passed without jurisdiction has no force and is declined. In support of the his arguments, learned counsel for the petitioner referred the judgment passed by the Hon'ble Apex Court in the case of Standard Chartered Bank Vs. Dharminder Bhohi and others, reported in (2013) 15 SCC 341 and attention of the Court was brought on para no.38 of the aforesaid judgment, which is quoted as under:- "38. Section 34 of RDB Act provides that the said Act would have overriding effect. We have referred to the aforesaid provisions to singularly highli....
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....ither denied nor disputed that apart from the lack of inherent jurisdiction to initiate such a suo motu proceeding, neither any notice was issued to the licensees nor any proceeding was initiated therefor. The principles of natural justice had, thus, not been complied with." We have gone through the judgments cited by the learned counsel for the petitioner. With due regard to the aforesaid judgments, we say that they are not applicable in the facts and circumstances of the present case, we further say that the merits of the case would be sustained, even in absence of jurisdiction and learned counsel for petitioner fails to demonstrate that the impugned orders were passed in breach of the legal proposition of law and is without jurisdiction and is against the principles of natural justice. Learned counsel for the respondent no.2 draw our attention of the Hon'ble Apex Court judgment passed in the case of Union of India and another Vs. Association of United Teelecom Service Providers of India and others, (2011) 10 SCC 543 and referred paragraph nos.63 and 67 of the aforesaid judgment, which are quoted as under:- "63. Section 14 (a)(i) of the TRAI Act, as we have see....
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.... for the respondent no.2 that the complaint was filed by respondent no.5 before the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar in the year 2012. Since then several notices were issued and adequate opportunity was afforded to the petitioner by the authorities concerned but th petitioner was avoiding the appearance and hearing of the case being no alternative the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar passed the impugned orders. We are also not inclined to accept the arguments of the learned counsel for the petitioner that the interest charged by the U.P. Real Estate Regulatory Authority (i.e. MCLR + 1%) is to excessive, whereas it is the admitted case of the petitioner that the respondent No. 5 has booked the Flat on 28.12.2012 and till the filing of the writ petition, the possession of the Flat was not given on the ground that the project of the petitioner was cancelled, from our opinion the interest charged by the U.P. Real Estate Regulatory Authority is accurate and not excessive, the same is fixed as per clause 9.2 (ii) of the Form of agreement contained in the U.P. Real Estate (Regulation and Development) (Agreement for Sale/Lease) Rules,....
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....rest of the amount awarded from a much earlier date and we see no reason why they should be deprived of such benefit. 38. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims. " We further place reliance of the judgment of the Hon'ble Apex Court in the case of Union of India through Director of Income Tax Vs. Tata Chemicals Limited, (2014) 6 SCC 335, and the Hon'ble Apex Court was pleased to observe in paragraph nos. 37 and 38 of the judgment, which are quoted as under: "37. A "tax refund" is a refund of taxes when the tax liability is less than the tax paid. As per the old section an assessee was entitled for payment of interest on the amount of taxes refunded pursuant to an order passed under the Act, including the order passed in an appeal. In the present fa....